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NAVY | DRB | 2007_Navy | ND0701036
Original file (ND0701036.rtf) Auto-classification: Denied
ex-GSEFR, USN
ND07-01036
Current Discharge and Applicant’s Request
Application Received: 20070724   Characterization Received:
Narrative Reason: COURT-MARTIAL CONVICTION       Authority: MILPERSMAN 3640420

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Clemency

Decision

 By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall COURT-MARTIAL CONVICTION .
Date: 20 080110             Location: Washington D.C         R epresentation :

Discussion

Issue 1 ( ). Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. The Applicant claims that he used illegal drugs because of the stress from financial and marital issues and uncertainty about his future . He submits a number of reference letters regarding his current character and relatively recent efforts at substance abuse rehabilitation. The Board noted that the Applicant was convicted of using marijuana, misconduct that usually results in either administrative discharge under other than honorable conditions or punitive discharge for bad conduct. The Board recognized the evidence of the Applicant’s rehabilitative efforts; however, a fter a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that discharge awarded the Applicant at his court-martial was appropriate for the offense he committed.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that

Summary of Service

Prior Service:
 Inactive: US N R (DEP)      19851223 - 19851226              Active:          19851227 - 19911126
Period of Service Under Review:
 Date of Enlistment: 19911127               Years Contracted : ; Extension:   Date of Discharge: 19990630
Length of Service : 07 Yrs 07 Mths 04 D ys                           Lost Time : Days UA: Days Confine d : 24
Education Level:                  Age at Enlistment:                AFQT: 52          Highest Rank /Rate : GSE2
Evaluation marks (# of occasions): Performance: 3.8 ( 5 ) Behavior: 3.9 ( 5 ) OTA: NOT FOUND IN RECORD       (4.0 scale)
                           Performance: 3.0 ( 1 ) Behavior: 1.0 ( 1 ) OTA: 2.29                          ( 5 .0 scale)
 Awards and Decorations ( per DD 214): NDSM, SSDR(2), COAST GUARD SPECIAL OPERATIONS RIBBON(2), AREM, BATTLE "E"(3), HUMS, SWASM(1star), GCM(2), LtrCOM(4), LtrAPR

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

 19940829:        Civil Case Disposition – Duval County Court, Jacksonville, FL. Charge (civil): Battery/Domestic Violence. Plea: No contest; Adjudication withheld. Disposition: Fined $100.00 to cover court costs.
19940913 :        Retention Warning for civil arrest on 19940722 for Breaking and Entering and Criminal Damage to Property in Gwinnett County, GA, and civil arrest and subsequent hearing for Domestic Battery, Duval County, FL .
19950821 :         NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 19950809, tested positive for THC.
Discharge Process

 Charge(s) and Specification(s): Article 112a , Use marijuana between 19950801 and 19950809 .
Preferred: 19960104                Court-martial : 19960304/19960409/19960506         Findings: Guilty of Article(s) 112 a
Sentence: BCD; Conf 30 days ; RIR E-3.             CA action: 19970313       NC&PB Action: NOT FOUND IN RECORD
Appellate Review Complete: 19990616 BCD ordered executed: 19990630 SSPCMCO No. 99-895 Discharged: 19990630

Types of Documents Submitted by Applicant and Considered By Board

 Related to Military Service:      Service and/or Medical Record:            Other Records:

Related to Post-Service Period:         
         Employment:                        Finances:                          Education:               
         Health/Medical Records:                   Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
        
Additional Statements From Applicant:    From Representative:             Other Documentation (Describe)      

Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 22, effective 15 Dec 98 to 21 Aug 2002, Article 5815-010 (formerly 3640420), Executing a Dishonorable or Bad Conduct Discharge.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a , Wrongful use, possession, etc., of controlled substances.


ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000 . You should read Enclosure (5) of the Instruction before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provi ded the application is received at the NDRB within 15 years from the date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. If a former member has been discharged for more than 15 years , has already been grante d a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

 Service Benefits: The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
Employmen t / Educational Opportunities : The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.
Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD . ” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

Issues Concerning Bad-Conduct Discharges (BCD ) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed.

Board Membership: The names and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

 Secretary of the Navy Council of Review Boards
 Attn: Naval Discharge Review Board
 720 Kennon Street SE Rm 309
Washington Navy Yard DC 20374-5023

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